Board of Educ. of the City School Dist. of the City of New York v Iannelli Constr. Co., Inc.

[*1] Board of Educ. of the City School Dist. of the City of New York v Iannelli Constr. Co., Inc. 2009 NY Slip Op 52685(U) [26 Misc 3d 1208(A)] Decided on December 21, 2009 Supreme Court, New York County Scarpulla, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2009
Supreme Court, New York County

The Board of Education of the City School District of the City of New York, Plaintiff,

against

Iannelli Construction Company, Inc. and Consolidated Flooring Corporation, Defendants.



402358/05



For Plaintiff:

Michael A. Cardozo, Corporation Counsel

100 Church Street, 4th Floor

New York, NY 10007

For Defendant Consolidated Flooring Corporation:

Mitchell & Incantalupo, Esqs.

98-20 Metropolitan Avenue

Forest Hills, NY 11375

For Defendant Iannelli Construction Company, Inc..:

Mazur Carp Rubin & Schulman P.C.

1250 Broadway

New York, NY 10001

Saliann Scarpulla, J.

In this action to recover damages for breach of contract and negligence, defendant Iannelli Construction Company, Inc. ("Iannelli") moves pursuant to CPLR §§3211(a)(1) and (a)(7) to dismiss the complaint insofar as asserted against it and defendant Consolidated Flooring Corporation ("Consolidated") moves pursuant to CPLR §§3211(a)(1) and (a)(7) to dismiss the complaint insofar as asserted against it.

In September 2003, general contractor Iannelli entered into the second renewal of a requirements contract ("Contract") with plaintiff The Board of Education of the City School District of the City of New York ("BOE") to remove a wood floor from the third floor gym in P.S. 219 in Brooklyn. In December 2003, Iannelli subcontracted the work to flooring contractor Consolidated. Consolidated began working in February 2004. [*2]

While removing the hardwood floor, Consolidated discovered a second hardwood floor beneath the hardwood floor that had been fully visible. On March 1, 2004, Iannelli requested a change order for additional compensation in the amount of $3,267.00 for removal of the additional layer of flooring. The Board approved the change order on March 3, 2004.

On March 4 through March 9, workers removed both layers of hardwood flooring, the sub-flooring and sleepers in the third floor gym. When the second layer of the floor was removed, a lightweight cementitious fill material was exposed beneath it throughout the gym. Iannelli and Consolidated did not stop working, did not report the discovery of the material, and did not test the material.

The fill material released visible dust in the gym, in the school stairways and hallways, and in the dumpster outside of the school. On March 10 and 11, the fill material was left exposed in the gym and in the dumpster outside of the school. On March 11, the BOE sampled the fill material and it tested positive for asbestos.

In or about July 2005, BOE commenced this action. The BOE alleges in the complaint that as a result of the asbestos release from March 5 through March 11, 2004, the entire school was contaminated with asbestos. On March 12, the schoolchildren were bussed to three other neighborhood schools. From March 15 through the end of the school year in June, the schoolchildren were bussed to a new previously unoccupied school building. P.S. 219 was closed for the rest of the school year for decontamination, cleaning and related repairs. Books, papers and all other porous material that could not be decontaminated were discarded. Official school records and files were scanned inside a special containment structure and then discarded as asbestos containing material.

In its complaint, BOE asserted causes of action for negligence (against both defendants) and breach of contract (against Iannelli). BOE alleged that by undertaking the removal of the wooden floor in the gym, Iannelli and Consolidated assumed a duty to exercise reasonable care in their activities at the school, including performing the work in compliance with laws and regulations for the protection of the public and property and without damaging the school. BOE alleged that Iannelli and Consolidated were negligent in failing to exercise reasonable care in removing the wooden flooring in the gym, in failing to identify materials that might contain asbestos and not disturbing such materials, and in storing and disposing of the materials without taking precautions to protect the school from the materials. BOE further alleged that Iannelli was negligent in failing to exercise reasonable care in supervising and directing Consolidated's employees during the removal.

In addition, BOE claimed that Iannelli breached its contract with BOE by not properly supervising Consolidated's work, not taking or causing Consolidated to take proper precautions when the asbestos containing fill material was uncovered under the second layer of hardwood flooring in the gym, not taking reasonable precautions to protect the school building and its occupants, not complying with Federal, State and local [*3]laws, rules and regulations governing work that disturbs asbestos containing material and its storage, transport and disposal, and not holding BOE harmless from its own and Consolidated's carelessness and negligence in connection with the construction project. BOE seeks to recover over six million dollars in damages.

Iannelli now moves to dismiss the complaint insofar as asserted against it, arguing that (1) BOE has submitted no documentary evidence nor pled any facts to support its contention that Iannelli should have suspected that the "concrete" fill material contained asbestos; (2) BOE, as owner of the premises, has superior knowledge of and responsibility for all dangerous or potentially dangerous conditions therein and should not be permitted to pass that responsibility on to contractors with no knowledge of or ability to learn of suspect conditions; and (3) according to BOE's own Standard Operating Procedures, BOE, and not the contractor, was responsible for shutting down a project and performing requisite tests if there was any question about suspect materials.

Iannelli submits BOE's Instructions for Bidders and Specification, amended in 2005 after the subject incident, which notifies contractors that they are required to assume that underlying sub-flooring contains asbestos unless told to the contrary, and argues that such amendment is a clear acknowledgment that the prior specifications under which Iannelli and Consolidated were operating did not provide contractors with such notification.

Iannelli also explains that according to the federal reporting requirement AHERA (Asbestos Hazard Emergency Response Act of 1986), each school must, every three years, inspect for asbestos and notify outsiders who enter the building of the risk of contact with asbestos to ensure that contractors that enter schools can reasonably expect not to encounter asbestos containing material. Iannelli argues that the AHERA report for P.S. 219 that was in effect at the time of the subject incident indicated that no suspect materials were found in the subject school and, therefore, there was no way it could have known that asbestos was present.

Finally, Iannelli submits the affidavit (from another proceeding) of Richard Martinez ("Martinez"), BOE inspector responsible for issuing Iannelli's work order at P.S. 219 in February 2004. Martinez avers that he relied on the AHERA report before issuing that work order. Martinez further provides that in his 15 years with the BOE, he oversaw hundreds of projects involving removing wood floors down to concrete and never encountered any leveling compound that contained asbestos.[FN1]

Consolidated also moves to dismiss the complaint insofar as asserted against it, advancing the same arguments set forth by Iannelli.

In opposition, BOE argues that its complaint sets forth viable claims for [*4]negligence against Iannelli and Consolidated and breach of contract against Iannelli. BOE maintains that whether Iannelli and Consolidated breached numerous contractual provisions and were negligent in disregarding the physical appearance of the fill material and the dust released from it, failing to identify the material as possibly asbestos-containing, not reporting the material, not disturbing that material until it had been tested, and not taking precautions to prevent the spread of dust released from the material are factual issues to be resolved at trial.

Specifically, BOE first argues that contrary to Iannelli and Consolidated's contention that there is no evidence or allegation that they should have suspected that there would be asbestos in the "concrete" fill material, at this time, it has not been determined that the fill material appeared to be or was, in fact, concrete. Rather, issues of fact exist as to the characteristics of the fill material based on conflicting Environmental Control Board hearing testimony describing the fill material as "leveling compound," "cementitious type material," "very crumbly concrete," and "powdery substance on the floor."

BOE further argues that (1) Martinez's affidavit lacks probative value because he never saw the surface in question and it is unknown whether he ever saw a surface like the one in question; (2) the AHERA inspection rules require only a visual inspection of the relevant areas, and not destructive testing of the building, and therefore, the report's conclusion that no suspect materials were found referred only to materials visible on a surface inspection; and (3) BOE's Standard Operating Procedures do not shift responsibility to BOE, rather, Iannelli and Consolidated were responsible for dust control and if they had any questions, if suspect materials were encountered, or if they were in any doubt during the course of the project, the Procedures directed them to stop work and contact BOE's health and safety department and they were to proceed with work only if the suspect materials were confirmed to not be asbestos.

Finally, BOE argues that the complaint states a viable breach of contract cause of action. BOE refers to the Contract and explains that pursuant thererto, Iannelli was required to exercise all precautions during the work and to protect both the building and the public from injury; to have on-site supervision by a competent foreman; to put any hazardous materials in a safe condition; to take precautions to minimize the spread of dust; to store debris in two layers of six-mil polyethylene taped bags; to legally dispose of all materials removed; and to be responsible for the acts and omissions of its subcontractors.

BOE also refers to the contractual provision explaining that Iannelli was to perform removals "as required to verify all existing conditions before fabricating the work. Before removing any enclosure that will expose the interior of a building to the elements, or before disturbing any structural work, the Contractor shall make all possible preliminary investigations to verify the existing conditions thereat. Where removals or preliminary investigations reveals existing conditions that differ materially from what is [*5]indicated or specified, or that may require changes, the Contractor shall immediately notify the Superintendent in writing and awai instructions before proceeding further with that part of the work." BOE argues that issues of fact exist as to whether Iannelli breached these contractual obligations.[FN2]

Discussion

On a motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction. Under CPLR §3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the claims as a matter of law. See Leon v. Martinez, 84 NY2d 83 (1994). On a motion to dismiss a pleading under CPLR §3211(a)(7), the sole inquiry is whether, according the facts alleged in the complaint every favorable inference, any cognizable cause of action can be made out. Mandarin Trading Ltd. v. Wildenstein, 65 AD3d 448, 454 (1st Dept. 2009).

It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. See Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382 (1987). However, in Sommer v Federal Signal Corp., 79 NY2d 540 (1992), the Court of Appeals recognized that separate tort liability can arise independently of the contractual relationship between the parties where the nature of the performance called for in the contract is affected with a significant public interest and failure to perform the service carefully and competently can have catastrophic consequences. See also General Sec. Ins. Co. v. Nir, 50 AD3d 489 (1st Dept. 2008); Trustees of Columbia Univ. v. Gwathmey Siegel & Assocs. Architects, 192 AD2d 151 (1st Dept. 1993). Here, the nature of the work - performing construction work in a school gym - has a significant impact on the public interest of preserving the safety of schoolchildren, which could give rise to a duty of reasonable care independent of contractual obligations. Therefore, the negligence causes of actions will not be dismissed on this ground.

Further, Iannelli and Consolidated fail to meet their respective burdens of showing either that the documentary evidence conclusively establishes a defense to the claims as a matter of law, or that the complaint failed to state a cause of action. Notably, Iannelli and Consolidated cite no cases to support their argument that the complaint, as pled, fails to state a cause of action or that they conclusively have a defense to the claims as a matter of law.

Upon a close reading of the complaint, BOE clearly pleads that its negligence claims are based on allegations that Iannelli and Consolidated owed duties to exercise [*6]reasonable care in removing the wooden flooring in the gym, including identifying or questioning the nature or appearance of the fill material and/or dust released from the material once it was exposed, not disturbing the material, reporting the material, and taking precautions to protect the school from the material in its storage and disposal of the material. As explained by BOE, issues of fact remain as to the nature and appearance of the fill material, and whether, upon a reasonable inspection of same, a suspicion that it contained asbestos should have been raised. The documentary evidence submitted by Iannelli and Consolidated, i.e., the AHERA report, Martinez affidavit, BOE's Standard Operating Procedures and the Amended Specifications, do not prove, as a matter of law, that Iannelli and Consolidated should not have suspected that the material contained asbestos and that they were not negligent.

The court further finds that BOE has sufficiently pled a breach of contract cause of action based on the cited portions of the Contract setting forth Iannelli's contractual

obligations and Iannelli has not submitted documentary evidence that conclusively establishes a defense to the breach of contract claim as a matter of law.

In accordance with the foregoing, it is

ORDERED that defendant Iannelli Construction Company, Inc.'s motion to dismiss the complaint insofar as asserted against it is denied; and it is further

ORDERED that defendant Consolidated Flooring Corporation's motion to dismiss the complaint insofar as asserted against it is denied.

This constitutes the decision and order of the Court.

Dated:New York, New York

December, 2009

ENTER:

_____________________________

J.S.C. Footnotes

Footnote 1:Iannelli also argues that, in any event, it can not be held liable for a statutory violation allegedly committed by its subcontractor.

Footnote 2:At oral argument on October 21, 2009, the parties also argued the issue of whether the negligence causes of action should be dismissed on the ground that a breach of contract action can not give rise to a negligence cause of action unless a duty independent of the contract has been violated.